The editor of a website who slavishly copies a competitor’s product description is guilty of unfair competition and parasitism even if there is no turnover

19/05/2021

On March 17, the French Supreme Court had the opportunity to rule on unfair competition and parasitism, when the acts are carried out on an Internet site.

“In order to optimize its referencing by the search engines, the editor of an e-commerce site to inform the products in question by reproducing identically the technical descriptions and the “opinions of the specialist” elaborated by the initial seller.

Reproaching the litigious site to sell the same products, the initial salesman to assign the editor of the site for unfair competition and parasitism.

If the Court of Appeal of Versailles in 2018 had rejected the claims of the seller on the grounds that it had not established “the existence of a causal link between the parasitic attitude attributed to the competing company and the correlative prejudice of which it claimed”, it should be stressed here that the publisher of the site did not benefit from this referencing since no sales were made until the date of the formal notice.

The reasoning is different according to the Court of Cassation.

Referring to article 1240 of the Civil Code, the Court recalls the definition of the notion of parasitism as the action “consisting in interfering in the wake of another person in order to profit, without spending anything, from his efforts and know-how”.

To be reprehensible, this action must cause a prejudice, resulting from a fault.

A causal link must be demonstrated between the fault and the prejudice.

The victim company did not claim compensation for economic damage resulting from a loss of turnover, but sought compensation for moral damage.

The Court of Cassation upheld its claim, stating that “a prejudice is necessarily inferred, even if it is only moral”.

Thus, even without any turnover resulting from this practice, a competitor can be condemned for parasitism when it has been proven by the victim that he has suffered moral prejudice.

By the IP/IT team of UGGC Avocats

Source : Court of Cassation, Commercial Chamber, March 17, 2021, 19-10.414, Unpublished


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